United States Court of Appeals 

for the Fifth Circuit 

No. 21-10312 

Summary Calendar 

United States of America, 

Plaintiff—Appellee, 

versus

Alexis Gonzalez-Banales, 

Defendant—Appellant. 

Appeal from the United States District Court 

for the Northern District of Texas 

USDC No. 7:20-CR-43-1 

Before Davis, Jones, and Elrod, Circuit Judges. 

Per Curiam:*

The Federal Public Defender (FPD) appointed to represent Alexis 

Gonzalez-Banales has moved for leave to withdraw and has filed a brief in 

accordance with Anders v. California, 386 U.S. 738 (1967), and United States 

*

 Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4. 

United States Court of Appeals 

Fifth Circuit 

FILED 

December 21, 2021 

Lyle W. Cayce 

Clerk 

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No. 21-10312 

2 

v. Flores, 632 F.3d 229 (5th Cir. 2011). Gonzalez-Banales has filed a pro se 

response. 

In his response, Gonzalez-Banales raises several claims challenging his 

sentence. However, those claims are barred by the waiver-of-appeal 

provision in Gonzalez-Banales’s plea agreement. They have no bearing on 

the validity of Gonzalez-Banales’s guilty plea or waiver of appeal and do not 

fall within any exception to the waiver. 

Gonzalez-Banales also asserts that he was denied the effective 

assistance of counsel at trial and on appeal. A 28 U.S.C. § 2255 proceeding 

is the favored forum for litigating a federal prisoner’s claims of ineffective 

assistance of counsel. Massaro v. United States, 538 U.S. 500, 503-09 (2003). 

We will consider a claim of ineffective assistance of counsel on direct appeal 

“only in rare cases in which the record allows [us] to fairly evaluate the merits 

of the claim.” United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014) 

(internal quotation marks and citation omitted). 

The record is not sufficiently developed to allow us to make a fair 

evaluation of Gonzalez-Banales’s claim that he was denied the effective 

assistance of trial counsel because his attorney failed to object to the district 

court’s imposition of an upward variance based on his “history and 

characteristics” and “other criminal conduct.” We decline to consider that 

claim without prejudice to collateral review. See id. 

It is clear from the record that Gonzalez-Banales’s claim that he was 

denied the effective assistance of appellate counsel does not present a 

nonfrivolous issue for appeal. Gonzalez-Banales complains that the FPD was 

ineffective because he did not raise the claims set out in his pro se response. 

However, appellate counsel is not deficient for failing to raise claims that are 

barred by an appeal waiver or are inappropriate for consideration on direct 

review. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). 

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Having reviewed counsel’s brief, Gonzalez-Banales’s response, and 

the relevant portions of the record, we concur with counsel’s assessment that 

the appeal presents no nonfrivolous issue for appellate review. Accordingly, 

the motion for leave to withdraw is GRANTED, counsel is excused from 

further responsibilities herein, and the APPEAL IS DISMISSED. See

5th Cir. R. 42.2. 

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